Did Liberal Justices Invent the Standing Doctrine? An Empirical Study of the Evolution of Standing, 1921-2006

Daniel E. Ho & Erica Ross

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I. The Insulation Thesis

The standing doctrine is the Rorschach test of federal courts. In theory, the doctrine serves a distinct function, namely ensuring that a litigant is the proper party to bring a claim in court. Yet standing remains one of the most contested areas of federal law, with criticisms of the doctrine nearing the number of commentators.

Indeed, even the most basic question of the origins of the standing doctrine eludes scholars. Conventional accounts focus on the nature of Article III’s case or controversy requirement, the collision between the administrative state and private rights-based models of judicial resolution, and caseload management. In contrast, one revisionist account, proposed by Steven Winter and Cass Sunstein, is that progressive Justices purposely invented and constitutionalized the standing doctrine in order to insulate New Deal agencies from judicial review.1

When advanced just twenty years ago, this New Deal “insulation thesis” inverted the conventional perception of the doctrine’s political valence. Rather than supporting the conservative goal of keeping broad-based public interest litigation out of court, restrictive standing requirements may originally have achieved precisely the opposite result: preserving and enshrining the liberal New Deal administrative state.

While provocative, prominent, and now largely considered conventional wisdom as the “definitive history of standing”2 and “part of the canon of Constitutional law,”3 the insulation thesis is thinly theorized and rests on fragile empirical grounds. Cases cited in support of the insulation thesis are haphazardly selected, and many of these cases are uninformative about, peripheral to, or plainly contradict the insulation thesis. Indeed, Professor Steven Winter—who first advanced the claim in 1988 in a seminal piece in the Stanford Law Review—himself once noted:

When I first claimed that standing doctrine was invented by Justices Brandeis and Frankfurter, I was unsure whether my documentation would be sufficient . . . . Consequently, I was surprised by the speed with which my revisionist claim was first credited as true and then consigned to the general stock of conventional wisdom.4

II. Testing the Insulation Thesis: Our Approach

In our Article, we synthesize the understanding of the insulation thesis and provide the first systematic quantitative empirical study of the historical evolution of the Supreme Court’s standing doctrine. Examining over 1,500 cases cited in major historical treatments of the doctrine and backdating all merits votes to 1921, we compile a new database of every contested standing and merits issue decided by the Supreme Court from 1921-2006. Armed with this extensive data set, we find compelling support for one version of the insulation thesis in the New Deal period.

Our data collection approach is threefold. First, to overcome haphazard case selection, we leverage a large number of sources (e.g., historical treatises, law review articles on the origins of the standing doctrine, Westlaw Key Numbers, and Lexis Headnotes) to enumerate the potential population of over 1,500 standing cases. Second, we read each of these cases to validate, classify, and disaggregate every express disagreement on a standing issue, recording votes cast by each Justice as favoring or disfavoring standing, or as unclear.

For example, consider the well-known case of Lujan v. Defenders of Wildlife. In that case, environmental plaintiffs challenged a regulation limiting the consultation process for federal agencies under the Endangered Species Act (ESA). Justice Scalia, writing for a six-Justice majority, found that litigants failed to allege particularized injury and that the citizen suit provision was insufficient to grant standing under the ESA for a procedural injury. Commanding only a plurality, Scalia further concluded that plaintiffs failed to show that a victory on the merits would redress the alleged harms. One jurisprudentially meaningful way to code the case would be as a 6-3 split on whether respondents have standing. Yet the opinions also contain additional information on three distinct standing issues: (1) whether plaintiffs have alleged a particularized injury (with Justices Blackmun, O’Connor, and Stevens answering in the affirmative, and all other Justices opposed); (2) whether the injury is redressable (with the same split except for Justices Kennedy and Souter not clearly taking a position); and (3) whether procedural injuries may be statutorily defined when they would otherwise not meet Article III requirements (with Justices Kennedy, Souter, Blackmun, and O’Connor answering in the affirmative, Justices Scalia, Rehnquist, Thomas, and White opposed, and Justice Stevens not clearly addressing the issue). By noting each of these distinct disagreements, our data collection captures key jurisprudential differences between the Justices, thereby allowing us to identify a meaningful population of standing issues and to examine the implications of the insulation thesis.

Lastly, we augment this new standing data with all judicial votes on the merits in roughly 5,400 cases, backdating the Supreme Court Database to 1921. We then apply modern measurement methods to summarize the differences in voting patterns in one dimension. Figure 1 presents merits preferences (sometimes called “ideal points”) for three natural courts. The left panel presents the pre-1937 Court. The short vertical dashes represent the estimated ideal point, and the horizontal lines capture uncertainty. The lower panels present the estimated positions for each of 135 cases that divide the majority and minority (“cutlines”). The estimates track qualitative distinctions between the Justices. The “Four Horsemen” (Justices McReynolds, Butler, Sutherland, and Van Devanter) anchor the right wing of the Court, while the “Three Musketeers” (Justices Stone, Cardozo, and Brandeis) anchor the liberal wing. Chief Justice Hughes and Justice Roberts (epitomized in the switch in time that saved nine) are pivotal Justices. The middle panel presents comparable estimates for the 1942-1944 terms, showing the realignment that resulted from the New Deal appointees. Justices Black and Douglas, the two great liberals, often were at odds with the (relatively) more conservative Justices Jackson and Frankfurter (“leader of the Court’s conservative core”)5 over incorporation and judicial restraint. This panel also emphasizes that these estimates are relative—while Frankfurter is conservative compared to the other FDR appointees, the entire 1942–1944 Court shifted to the left of the pre-1937 Court. For comparison, the right panel presents estimates for the Rehnquist Court, which are consistent with conventional wisdom. The cutlines also show that the cardinal location (or apparent “left skew” of the ideal points) is entirely relative: most of the cutlines that divide the majority and minority are also towards the left on the cardinal scale. The cluster of cutlines in the space between Justices O’Connor and Souter represent the frequent 5-4 split on the Rehnquist Court. The merits data thereby enables us to formalize qualitative assertions by insulation proponents of who the “liberal” and “conservative” Justices are (although such characterizations do not warrant a strong “attitudinal” or “realist” interpretation).

Figure 1: Illustration of ideal points of Justices for three natural courts. The top panels represent the estimated locations where left can be interpreted as more “liberal” and right can be interpreted as more “conservative.” Short red vertical dashes represent the best guess of Justice positions (posterior medians), and horizontal segments represent uncertainty (95% credible intervals). The bottom panels overlay estimated cutlines that separate the majority and minority for all decisions by that natural court. This illustrates that only the relative positions of the Justices matter: for example, the right-skewed marginal distribution of ideal points for the Rehnquist Court matches similar skew of cutlines. More importantly, these estimates are consistent and formalize qualitative assertions about which Justices are “liberal” and “conservative.”

In sum, our data encompass 47,570 votes on 5,497 unique issues and the full population of 229 standing issues on which Justices expressly disagree. Using modern statistical methods, we can then capitalize on crucial variation across Justices, time, and cases to assess the insulation thesis.

III. Results

Our results clarify, synthesize, and unify existing accounts of the early rise of the standing doctrine, and provide insight into its more recent evolution. We find compelling support for one version of the insulation thesis, with three central findings that refine extant accounts.

First, the insulation thesis does not fully explain the conception or invention of the modern standing doctrine. From 1921-1930, standing arose largely unanimously. Progressives and conservatives exhibited no systematic disagreement as to the doctrine. Early unanimity may be consistent with an alternative explanation of caseload management, occurring at the same time of the Supreme Court’s conversion to the discretionary docket, and is also consistent with existing evidence that the seeds of the doctrine are traceable to the 18th and 19th centuries.6

Second, unanimity collapsed with the New Deal period, and cases from the 1930s and early 1940s provide substantial support for the insulation thesis. Standing disagreements came to embody systematic differences across Justices, with liberal Justices disproportionately denying (and conservatives granting) standing. To illustrate the key finding, Figure 2 plots the correlation between merits views (from Figure 1) on the x-axis and the proportion of times a Justice favors standing. The left panel plots pre-1940 cases and the right panel plots post-1940 cases. Each circle represents one Justice, with the area weighted by the number of cases; lines represent iterated linear fits to the data (accounting for measurement error in merits views). Although inherently based on small sample sizes, Figure 2 provides strong evidence in favor of the insulation thesis: before 1940, liberals were far more likely to deny standing, while conservatives were far more likely to grant it. The figure also shows that insulation is not confined to individuals. Justice Frankfurter, for example, is no mere outlier in Figure 2, as standing disagreements reflect underlying differences between progressives and conservatives. The trend is most pronounced in cases involving New Deal legislation and administrative agencies. The period of liberal insulation was short, unraveling in the 1940s. By 1950, the doctrine’s political valence reversed entirely. Compared to the merits, liberals were uniformly more likely to favor—and conservatives more likely to deny—standing. The contrast between the sharp conservative valence of the post-1950 period and the liberal valence of the New Deal era provides striking evidence for progressive use, if not invention, of the standing doctrine during the New Deal period.

Figure 2: Reversal in merits-standing preferences over time. The left (right) panel presents pooled merits ideal points on the x-axis against the proportion of votes cast by each Justice favoring standing in contested cases from pre-1940 (post-1940) cases. The area of each observation is proportional to the number of issues. To account for measurement uncertainty, the green lines represent least squares fits to the data from 50 draws of the posterior distribution of merits ideal points, and blue lines represent robust MM fits to the same data.

Third, perhaps most compelling is that individual Justices track the valence shift of the standing doctrine. For example, the voting patterns of Justices Douglas and Black reflect the transformation of the doctrine. As the great liberal and environmentalist, Justice Douglas is typically known for his permissive take on the standing doctrine. Dissenting in Sierra Club v. Morton, Douglas famously cited to an article entitled Should Trees Have Standing?, noting that “[t]he voice of the inanimate object . . . should not be stilled.”7 Yet Justice Douglas voted largely to deny standing during his early years (a compelling fact missed, as far as we are aware, by existing accounts). It was only after 1950 that Justice Douglas adopted his “liberal” views on standing, favoring standing in every contested case heard thereafter. Most telling, perhaps, is that Justice Douglas himself expressed an awareness of the insulation effect over a decade before the insulation thesis was advanced in law reviews. In Schlesinger v. Reservists Committee to Stop the War, he noted that standing “make[s] the bureaucracy . . . more immune from the protests of citizens.”8

In short, our research reveals that while the seeds of the standing doctrine existed prior to the New Deal, the doctrine took a distinct political valence around the time of the New Deal that —when contrasted with decades of nearly uniform conservative political valence post-1940—is resoundingly consistent with the insulation thesis.

Acknowledgments:

Copyright © 2010 Stanford Law Review.

Daniel E. Ho is an Associate Professor of Law at Stanford Law School. Erica L. Ross received her J.D. from Stanford Law School and is currently a law clerk to the Honorable David S. Tatel on the U.S. Court of Appeals for the District of Columbia Circuit, 2009-10.

This Legal Workshop Editorial is based on the following Law Review Article: Daniel E. Ho & Erica Ross, Did Liberal Justices Invent the Standing Doctrine? An Empirical Study of Evolution of Standing, 1921-2006, 62 STAN. L. REV. 591 (2010).

  1. Cass R. Sunstein, What’s Standing after Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 MICH. L. REV. 163 (1992); Cass R. Sunstein, Standing and the Privatization of Public Law, 88 COLUM. L. REV. 1432, 1436-38 (1988); Steven L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 STAN. L. REV. 1371 (1988).
  2. Robert J. Pushaw, Jr., Methods of Interpreting the Commerce Clause: A Comparative Analysis, 55 ARK. L. REV. 1185, 1198 n.59 (2003).
  3. Maxwell L. Stearns, Standing at the Crossroads: The Roberts Court in Historical Perspective, 83 NOTRE DAME L. REV. 875, 889 n.61 (2008).
  4. Steven L. Winter, The Meaning of “Under Color of” Law, 91 MICH. L. REV. 323, 333 n.48 (1992).
  5. Bernard Schwartz, A History of the Supreme Court 240 (1993).
  6. Caleb Nelson & Ann Woolhandler, Does History Defeat Standing Doctrine?, 102 MICH. L. REV. 689 (2004).
  7. 405 U.S. 749 (1972) (Douglas, J., dissenting).
  8. 418 U.S. 208, 229 (1974) (Douglas, J., dissenting).

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